Fayad & Khalil

[2021] FCCA 1470

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fayad & Khalil [2021] FCCA 1470

File number:

MLC 10589 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

30 June 2021

Catchwords:

FAMILY LAW – interim parenting – supervised time – suggested sabotage of supervised time – change of residence on interim hearing – family therapy.

Legislation:

Family Law Act 1975 (Cth), ss 60CA, 60CC

Cases cited:

AMS v AIF (1999) 199 CLR 160

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) FLC ¶93-286

SS & AH [2010] FamCAFC 13

Number of paragraphs:

36

Date of hearing:

18 June 2021

Place:

Melbourne

Counsel for the Applicant:

Ms J Swann

Solicitor for the Applicant:

Rigoli Lawyers

Counsel for the Respondent:

Ms V Sweet

Solicitor for the Respondent:

Aston Legal Group

ORDERS

MLC 10589 of 2020

BETWEEN:

MR FAYAD

Applicant

AND:

MS KHALIL

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	18 JUNE 2021

Amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001

THE COURT ORDERS THAT:

Independent Children's Lawyer

1.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born in 2021 2016 and Y born in 2021 2016 ("the children") be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

Expert Assessments

2.The wife, Ms KHALIL ("the Wife") arrange for the children to attend upon a paediatrician for the purposes of an assessment and report in relation to the children's development and behavioural issues and for that purpose:

(a)The Wife obtain a referral from the children's treating general practitioner;

(b)The Wife inform the husband, Mr FAYAD ("the Husband") of the name and contact details of the paediatrician and the appointment date and time;

(c)The Wife inform the paediatrician of the Husband's name and contact telephone number and authorise the paediatrician to liaise the husband about the children;

(d)The Wife provide copies of the paediatrician's report to the Husband and to the Independent Children's Lawyer within 48 hours of the report being released; and

(e)The Husband and the Wife equally pay the cost of the paediatrician's assessment and report to the extent that such cost is not covered by Medicare.

3.The Husband and the Wife attend upon Dr B ("the psychologist") for risk assessment and psychological evaluation and for that purpose:

(a)The parties each provide the psychologist with copies of the Affidavits they have filed in this proceeding;

(b)The costs of their individual assessments and reports from the psychologist be paid equally from the proceeds from the sale of the former matrimonial home before any division of the net proceeds between the parties;

(c)The Independent Children's Lawyer file the reports from the psychologist on Affidavit as soon as practicable after the release of the reports.

Family Therapy

4.The Husband, the Wife and the children participate in reportable family therapy with Mr C ("the family therapist") for the purposes of:

(a)building a meaningful relationship between the children and the husband;

(b)addressing the children's behavioural issues; and

(c)improving the communication between the parents.

5.For the purposes of the family therapy provided for in order 4 herein:

(a)The parents avail themselves of the first available appointments with the family therapist;

(b)The Husband and the Wife follow the reasonable directions of the family therapist with respect to their attendance at family therapy and facilitate the children's attendance when required;

(c)The costs of the family therapy and report provided for in order 6 4 herein be paid equally by the parties from the proceeds from the sale of the former matrimonial home.

6.The parties provide authorities to the Independent Children's Lawyer to obtain information about the children from the kindergarten they attend, any medical professionals or allied health workers who treat the children, the psychologist and the family therapist.

7.The Family Consultant appointed by the court to prepare the Family Report pursuant to order 15 of the orders dated 25 February 2021 be authorised by the parents to liaise with and obtain information from:

(a)the children's kindergarten, general practitioner, paediatrician and any other health professional who treats the children;

(b)any psychologist on whom the Husband and/or the Wife attend for treatment or assessment; and

(c)the family therapist.

8.Further to order 3 of the Orders dated 25 February 2021 that provides for professionally supervised time (see Notation), the Husband and the Wife shall take into consideration the recommendations by the family therapist with respect to the resumption of the time the children spend with the husband.

9.There be liberty reserved to the parties to apply at short notice in writing following the release of the Family Report, noting the matter is listed for Final Hearing on 17 February 2022.

10.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The children are not currently spending time with the Husband pursuant to order 3 of the Orders made on 25 February 2021 due to the concerning behaviour of the children during professionally supervised time.

B.The basis of the appointment of Independent Children's Lawyer is:

(a)The Husband's allegations of psychological abuse of the children by the Wife; and

(b)The Wife's allegation of family violence perpetrated by the Husband against the Wife and the children.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Fayad & Khalil is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This is the third time since proceedings were issued in September 2020 that the welfare of twin boys now aged five (“the boys”), has come before the court.  The matter is listed for final hearing in February 2022 with a family report to be prepared and released on or before 23 November 2021.  I must determine whether on this occasion, being an interim hearing conducted on the papers, I should change the residence of the boys so that they live with their Father instead of their Mother with whom they had lived their entire lives.  The boys were only weeks or months old when the parents separated in 2016.  I heard this matter on 18 June 2021 and handed down my orders and reserved my reasons.  These are those reasons.

2. The Father is aged 36, a tradesman and lives in an outer suburb of Melbourne.  The Mother is aged 45, is also trained as a tradesperson, but currently involved in home duties and lives in the same suburb as the Father.  The parties cohabited from 2010, married in 2015 and separated shortly after the boy’s birth in 2016.

3. The Father filed an application in a case on 19 May 2021 seeking orders that the children live with him, that the Mother not see the children for a period of two weeks from when the children commenced to live with him and that thereafter the children the children spend each alternate weekend with the Mother.  That application was listed on Tuesday, 15 June 2021 by video link on Microsoft Teams because of COVID-19 restrictions and considerations.  For reasons set out later I ruled that the hearing could not proceed that day and all extant applications were adjourned to Friday, 18 June 2021. 

4. On 15 June 2021 the Father filed exhibit F1 15 June 2021 which sought in the alternative, if I was not persuaded to make the orders sought in the application in a case, a suite of orders including that the parties attend for family therapy, the appointment of an independent children's lawyer and psychological assessment of the parties instead of continuing with the regime of supervised time as ordered previously.

5. The Mother asserts that the parties had and continue to have two very significant differences.  She says, and the Father denies, that he sought to separate the boys on the basis that the parties could have one each.  The Mother asserts the circumstance that she was raised Christian and the Father Muslim was also a matter of significant conflict between them.  The Mother alleges family violence perpetrated by the Father against herself and the children back in mid 2016 and recites a history of violence going back to 2014 and alleges as recently as June 2019 the Father has driven past the house and said he would kill them all.  The Father denies these allegations.

6. The Father asserts that the history of his time with the children was set out hereafter.  In June and July 2016, when the boys were babies, the Father says that he saw the children for approximately one hour at a time at a shopping centre supervised by the Mother.  He says there was no further time until January 2017.  He says that time commenced in January 2017 with the time supervised by the Mother.  The Father says that short periods of time supervised by the Mother continued until about September 2019 and that thereafter the time was irregular until August 2020 when time stopped altogether.  He says it was the cessation of time by the Mother that caused him to issue these proceedings.

7. The Mother asserts that in 2019 the Father was having regular time with the children supervised by her.  The Mother does not contest that time was stopped and asserts the cause was the Father's aggression to her during his time (it was supervised by her).  The boys had turned 4 years old in 2020 and at this stage they had not yet spent any time unsupervised in the care of their father.

8. The Father denies that he was aggressive or that he perpetrated family violence.

9. The Mother asserts that she was prepared to make the children available to spend time with the Father for more time than he wished to exercise in 2019. Text messages exchanged between the parties, exhibited to the Father's affidavit page 34 of 38, on the face of it show a very positive attitude of the Mother promoting the Father spending time with the boys. One message reads:

   Hi, Mr Fayad, I decided to let you spend time with my kids every day for and how or to an all day on Sundays.  When you finish work every day you can stop the park and meet the boys.  So will see you every day around 330 or 4pm.  Hope everything goes smoothly for the sake of our kids.  In the meantime I'm happy if you can see a psychologist and get help.  Take care and good night.  See you tomorrow. 

10. It is common ground that the regular time referred to in the text message never occurred.

11. At paragraph 56 of the Father's affidavit, among other things, he asserts that, in or around September 2019, that the Mother asked him to leave his new partner and rekindle their relationship. Also in the Father's affidavit at page 34 of 38 is a series of text messages from the Mother.

12. After the text message referred to above text messages exhibited include the following:

    Is there a reason?  Don't you want to have a good relationship with your kids?  I'm giving you the opportunity and you kicking it off.

    Please confirm Friday’s meeting.  Thanks.

    It's Wednesday, two more days left.  Please don't find answers that you regret in the future.

    (and repeated)

    It's Thursday Mr Fayad.  Only one more day left to answer my two questions.  Our kids future yours and mine future and others future depend on your answers.  Don't take this easy.

    Hey I just wanna share a good news I just received.  Omg.  I've been offered a scholarship to study diploma by the uni.  That's a pathway to become a public servant.  I'm not sure what to do because I want to become an allied health worker in a school.  So happy of myself.  Thanks to my boys.  Their luck shines upon me I think.  Please don't tell anyone.  There are jealousy people.  Sorry for sharing my happy news with you.

    It's finally Friday.  I hope that you will turn up to meet me like a brave responsible adult.  Will be talking about the two questions and parenting and property issues.  I want us to communicate to solve these problems and I think we don't need 1/3 party to take decisions on behalf of us.  We are stuck and will be going no further without the communication.  Please go to mosque today because our lives will be changed for ever after today.  See you after 3.30.

    P.S.  what I did last few days was done by purpose.  It's a psychological trick to find your trigger point.  Will explain later

13. At the hearing I asked the Father what he believed were the two questions in the text messages to which answers were sought.  His said to me were that these messages related to the Mother's request that he end the relationship with his current partner and resume a relationship with her. 

14. Whether or not that is so, on the face of it, there is substance in the Father's counsel's assertion that these messages indicate three matters. Firstly that the parties were communicating, secondly this contradicted the assertion in the section 11F child inclusive conference interviews that there was no communication whatsoever between the parties and thirdly these text messages contradict the allegations that the Mother was fearful of the Father and that the Father was aggressive at changeovers.

15. The Father issued proceedings on the 29 September 2020 with the first return on 11 November 2020. On that day the parties were both represented and orders were made by consent to the effect that the children would live with the Mother and the parties would attend upon the service known as the family contact service, a private pay-as-you-go professional supervisor, with the cost to be borne by the Father and that a report would be prepared and that the parties attend a child inclusive conference pursuant to section 11F of the Family Law Act1975 (Cth) (‘the Act’), attend a conciliation conference on 1 February 2021 and that the matter was otherwise was adjourned to 25 February 2021.

16. The manager of that supervision service prepared a detailed report concerning the events at the attempts for supervised time to occur.  That report has been filed on affidavit on 2 June 2021.  On the face of the report of the first supervised visit on 9 December 2020, in all the circumstances, went well at times.  The report summarised the observations of the first visit.

    SUMMARY OF OBSERVATIONS:

    ·     (the Mother) transported the children to the venue however it seemed that she didn't want help with the process but cooperated to fulfil the obligation of transportation.  Luckily (one child) willingly hopped out (of the Mother's car) without fuss…

    ·     …Y is the oldest with a friendly and outgoing personality and as for X the youngest was somewhat reserved and shy when he noticed strangers looking at him.  X did not connect with (the Father) initially, but approximately one hour into the visit, he seemed comfortable with him and happily followed (the Father).

    ·     (the Mother) engaged positively with (the boys) throughout the supervised time.

    ·     There were no concerns noted for the safety of the children during the visit.

17. For the next visit the Mother and the boys attended the agreed place for time to occur but according to the report:

    The decision was made to cancel the visit due to a difficult process initiated by Ms Khalil.

    SUMMARY OF OBSERVATIONS:

    ·     (the Mother) made the process very difficult for all parties.  (The Mother) did not want to assist or encourage the children to spend time with (the Father)

    ·     It was observed that the children have change(d) their behaviour.  The previous visit was difficult at first however the children became comfortable with (the Father).  In this instance they were crying before the supervisor reached the vehicle.

    ·     (The Mother) talked about domestic abuse, family violence and denigrated (the Father) in front of the children and she was warned not to discuss such issues.

    …

18. According to the report at the third attempt at supervised time as ordered, scheduled at a zoo, things went from bad to worse.  Observations include the following:

    “It was a terrible start from the beginning.  The Mother did not make an effort to assist with the process and did not encourage the children to leave the vehicle.  The Mother hopped out and then went around the back seat.  She held on to (the youngest) and when asked to assist the children she stood there and did not move.

    After much discussion and asking her to assist, she refused and then she was asked to step aside from the vehicle in order for the father to assist the supervisor with the children.

    She reluctantly moved aside after approximately 10 minutes.  When the supervisor asked the mother to encourage the children to go with the father for two hours and then returned to her, she told the supervisor to "shut up" and not to tell her what to do.  Throughout the conversations between the supervisor and (the Mother) she kept telling the supervisor to shut up and don't tell me what to do. 

    …

    The children were carried to the zoo entrance and the Father calmed the children down.  They were observed starting to relax when the mother appeared and then demanded that the children be returned to her as they were crying that she was going to call the police.  Then she took to the supervisor in an inappropriate manner and used obscene language ie the 'fucking' word and said that she did not care about any arrangements or court orders.  She yelled at father in front of the children.

    Afterwards, a zoo staff approached us and questioned the situation.  After discussion with the zoo staff, the children were placed on the ground and released to the care of the mother.  The father asked to try again but the mother refused and did not want to assist in the process.

    The supervisor cancelled visit…”

19. It is unnecessary to set out the details of each attempt at visit thereafter however on the face of the report it can be said that save for transporting the children to the place where the supervised time was to occur, in the opinion and observations of the independent supervisors, the Mother did not assist or encourage the process at all and interfered with it.  Further the behaviour of the children deteriorated and came to include observations that;

    …The children were noted rapidly resorting to physical violence/aggression against/towards the Father.  The children, who were noted as having crosses in their pockets on the previous visit, now use these to 'ward off' the Father as if he were a demon or vampire.  The writer found the level of aggression (including the Father being kicked hard in the face) and the use of crosses highly concerning, having netted before seen children of this age act in such a manner.

    The children were noted as regularly making 'eggh' 'cries', without tears.  This, to the writer, has not presented as clearly genuine.

    …

    The children's aggression towards the Father is noted as increasing in pitch and tempo.  Both seem to perceive the father as "evil", summarised by them holding crosses up at him.  The Mother presents as delaying handover and to not follow the writers instructions regarding to tell them not to hit the father.  The mother also appears largely unconcerned when informed by the writer of the children's behaviour.

1. After this visit supervision service made notification to child protection.  There was a further attempt at supervised time following week.  This went no better than the others however had the new or additional aspect of the children repeating “I don't know” constantly over the duration of the attempt at contact.

2. The last observation of the report following the cessation of time on 22 April 2021 included the following:

   FINAL SUMMARY

   …

   ·     There have not been any concerns noted regarding the Father's conduct during Family Contact Service involvement.

   ·     (The Father) has always been punctual, eager to see his children, highly compliant and respectful.

   ·     (The Father) has paid for all visits despite the majority being terminated earlier than schedule which highlights his commitment to his children and his desperation to have a relationship with them.

   ·     Of late, the children's aggressive behaviour towards the father has negatively impacted on his emotional well-being which was evidenced on the last visit…

   ·     Of significance concern is (the Mother's) conduct presentation which raises concerns about her mental/emotional state.

   ·     There have not been any visits since 22 April 2021 as requested by the Father upon seeking legal direction.

   ·     There continues to be significant concerns regarding this matter that need to be brought to the court's attention and until therapeutic intervention is considered to support the children and the mother genuinely supports the children's relationship with the father, facilitating time spent is a futile endeavour.  

3. The general thrust of the observations of the report are contested by the Mother.  The Mother's counsel highlighted what were regarded as inconsistencies in the report favourable to the Father including the observation at page 33 of 34 that there had not been any concerns noted regarding the Father's contact but that at page 21-22 to 24 included the following observations:

   …The children were observed to regularly hit the Father (lightly).  To this, the Father was observed saying "no, don't hit please", seeming to dislike this but showed no clear aggression and remained calm.

   …

   The Father remained calm at the children's demeanour and the hitting of him although this did present as unsettling him… one exception to this was when the Father told the children "no more hitting or I won't let you go back to mummy"…

   The Father's overall demeanour was noted as patient and positive towards the children, if he did show some stress. 

   …The children's hitting of the Father was consistent behaviour throughout the entire contact.  The Father did no clear action on the contact cause the children to do this to him. 

   The Mother was noticeably more cooperative than the previous occasion, working with the writer to inform the children they would be safe with the writer and that it was okay to leave with the writer.

4. On the face of the report there is substance to the suggestion that the Mother sabotaged the supervised time orders and submitted the children to psychological abuse by that process.

5. It was in the context of these observations that the Father pressed the change of residence to his care notwithstanding the short term to stress that this would inevitably cause to the children.  It was made clear to me that the alternative position of family therapy was very much an alternative.

6. I carefully considered both parties submissions to me and all of the evidence.  However this is an interim hearing and great caution should be exercised in making factual findings on an interim hearing without the opportunity for the evidence to be examined in detail. 

7. Paragraph 81 and 82 of Goode & Goode (2006) FLC ¶93-286 state:

   81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82.      In an interim case that would involve the following:

   (a)       identifying the competing proposals of the parties;

   (b)       identifying the issues in dispute in the interim hearing;

   (c)       identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

8. However there may be occasions when the urgency of the situation compels findings to be made.  The Full Court in SS & AH [2010] FamCAFC 13 at [100], applying the observations of Kirby J in AMS v AIF (1999) 199 CLR 160 observed as to the fact-finding exercise on an interim hearing:

   [100]… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. 

9. And in Franklyn & Franklyn [2019] FamCAFC 256 (23 December 2019) at [72]-[73] the Full Court observed:

   [72]…Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (citations omitted), but remaining astute to potential risk is not the same thing as assuming the truth of an reactive impulsively to everything (one party) alleged without regard for other evidence and the wider context.

   [73]in interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence.  Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.  Contrary to the inherent premise of (one parties) submissions… judges are not required to treat all untested evidence as bearing the same weight.

10. Hence were the case to turn solely on the point of whether or not the Mother has sabotaged the supervised time with the Father I would have needed to determine the accuracy and strengths of the report of the supervision service.  There is much to commend the accuracy of that report.  However even if I were to accept the controversial report as accurate, and at a final hearing a judge may well accept the observations as accurate, there are other significant matters relevant to the welfare of the children at this interim hearing.  Hence I do not determine that the report is accurate or likely to be accurate.  I proceed on the basis that although it is compelling on its face it is nonetheless contested on this interim hearing.

11. The reality is that the primary attachment of these boys is with their Mother and she was the only carer they have known throughout their lives.  To remove them from the care of their Mother in place the care with their Father who they simply do not know would be traumatic for them.  I do not yet know, or I cannot exclude, that there is some other medical or psychological circumstance relevant to their observed behaviour.  It may not simply be a matter of their Mother's role in failing to promote the relationship with the Father.

12. I cannot determine at this interim hearing whether or not the Mother's allegations of significant family violence are correct and if they are the likely impact upon her functioning including her interactions with the father at changeover.  This is so notwithstanding the clarity, on their face, of the text messages referred to earlier.

13. The matter came before me on Tuesday, 15 June 2021.  The hearing was by video link over teams with each of the parents being in their respective homes and their respective counsel being in their chambers.  During the morning when the hearing commenced I observed the Mother addressing someone off camera and upon my enquiry as to who that was the Mother advised me that this was the boys.  I was not prepared to conduct a court case about the boys welfare, they are now five years old, in their presence.  Further I require during a hearing a parent be able to fully concentrate upon the serious matter at hand, in this case an application of some weight for a complete change of residence of the boys in the face of an allegation of sabotage of supervised time.  The matter was stood down to the afternoon to enable the circumstances to be clarified.  When the matter came on again several hours later I was advised that the Mother had arranged for an adult to supervise the children in another room to where the camera/computer apparatus was but that that person was not well known to the children and that I was likely to hear the children crying from the separate room where they were but I was assured that the children would not hear the proceedings.  The Mother's counsel was able to advise me of this because, he said, he had in the course of taking instructions been able to hear the children crying in the other room despite the supervision arranged by the Mother.  While this was being discussed I was able to hear at least one of the children crying. 

14. I found this to place the Mother in an intolerable position. She was facing a serious application to change the residence of her children in the circumstances described above, yet was expected to concentrate upon that hearing while listening to the cries of the five year old children in an adjoining room (being supervised by an adult). In these circumstances I adjourned the hearing to the following Friday when it was expected that the children would be at kindergarten. The circumstances that the children, now aged five, and ordinarily be expected to go start school next year, would be crying at length in their own home when being supervised by an adult chosen by the Mother, although that person was not known to them previously, was itself concerning.

15. In these circumstances I have determined that the children's best interests will be best advanced, at this time, by the pursuit of family therapy involving the parents and the boys and not a drastic change of residence.  That therapy should be paid for from the proceeds of sale of the former matrimonial home and the ultimate responsibility for that expense can be determined at final hearing if not agreed.  I also take into account the circumstance that the Mother's counsel has told me that her client is committed to the family therapy contemplated by the Father's alternative proposal.

16. I have taken into account the provisions of sections 60CA and all of section 60CC of the Act. The submissions of the parties’ counsel did not specifically address those sections but took it as read that I would do so and I do.

17. Having announced my decision I stood the matter down and invited counsel to address between them the form of the orders contained in the father's alternative proposal and they did so.  I am grateful to them and I have made orders in that form. 

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate: 

Dated:       30 June 2021